Workers and Companies ’ mobility

1. Workers and Companies’ mobility

2. Free movement of workers • Is theresuchthing as a « labormarket » ? • Whatis a « worker » under EU law? • Whatrights are granted to workers, who are entitled to free movement?

3. Workers’ rights Immigration - Right to enter the territory of anotherMember State - Right to remain on thatterritory to work - States’ remaining power to control immigration ?

4. Public order • Member state candeportcitizens of other MS for public orderreasons • BUT : narrow conception of the notion of public order (directive of 1964) and strict scrutinyapplied by the Court of Justice

5. Equaltreatementwithnationals • Principle of non-discrimination based on nationality (direct and indirect discriminations are prohibited) • Field of equaltreatmentrights: employment, welfare, tax, housing… Ex : Texeira case (2010), access to welfare (housing)

6. Prohibition of all restrictions to free movement Bernard case (2010): • even if no discrimination occur, restrictions are prohibited • Horizontal application of free movementrights

7. Companies’ mobility Two dimensions: - Free establishment in another member State - Free provision of services

8. Free establishment Art. 49 TFUE: « Right to take up and pursueactivities as self-employedpersons and to set up and manage undertakings (…) underthe conditions laid down for itsownnationalsby the law of the country wheresuch establishment iseffected ».

9. Forms of establisment in another MS Right of establishment includes (art. 49 TFUE): the setting-up of agencies, branches or subsidiaries by nationals of anyMember State established in the territory of anyMember State

10. Prohibition of all « restrictions » to free establishment • Art. 49 TFUE: « restrictionson the freedom of establishment of nationals of a Member State in the territory of anotherMember State shallbeprohibited » • ECJ: restrictions canonlybeaccepted if justified by compellinginterests & proportional to the aim of the measure

11. Delaware effect ?ECJ, Centros (1999) Facts: - Danishlawrequires a substantial capital input on formation of a closelyheldcompanylimited(about 28.000 Euro, more than 27.000 US $). - Danishfounders of the companydecideto set up acompany in the UK (minimum capital of £ 100) and, withoutstartingany business activity in the UK, appliedfor registration at the Danishregistryoffice • The application wasturneddown becauseCentros, Ltd. had not established a trade or business in the UK(= itwas in factseeking to establish not a branch, but a principal establishment) and wastherebycircumventingDanishrules, more specificallythose on minimum capital

12. ECJ, Centros (1999) Ruling: • It iscontrary to theteaty to refuse to register a branch of a companyformed in accordance with the law of anothermember state in whichit has itsregistered office, but carries on no business • Limit: "thisinterpretationdoes not prevent the authorities of the (host state) to adoptappropriatemeasures for preventing or penalisingfraud, either in relation to the companyitself, or in relation to itsmembers, whereit has been establishedthatthey are in factattempting by means of the formation of a company, to evadetheir obligations towardsprivate or public creditorsestablished in the territory of the Member States concerned

13. Companies’economicfreedoms v. workers’ rights The Viking case (2007): Can workers’ right to collective action beconsidered a restriction to free establishment?

14. The Viking case (2007) Facts: - Viking Line is a Finnish passenger shipping company - Owned and operated a ferry, Rosella, under a Finnish flag and with a predominantly Finnish crew who benefited from a collective agreement negotiated by the Finnish Seamen’s Union - Viking decided that it would be better off if Rosella was registered as an Estonian ship, crewed by Estonian seafarers on lower wages(operation of “reflagging”).

15. The Viking case (2007) Outcome: 1- Recognition of the right to take collective action as guaranteed by international andCommunity law. 2- Strike is a restriction to Free establishment => Justification & proportionality required & reviewed in courts